Galleries, libraries, archives and museums, also known as ‘GLAM’ institutions, act as the historical keepers for many aspects of humanity’s shared artistic and literary works and are some of our staunchest advocates in the preservation and advancement of culture. In the face of rapid technological development and exponentially spreading globalisation, culture is in dire need of such stewards. However, this stewardship in the Western world, through practice, demand, and even necessity, has taken primarily the role of preserving and protecting objects. As Richard Kurin noted:

Museums are adept at dealing with objects. Objects are accessioned, numbered, measured, catalogued, stored, preserved, conserved, exhibited, repatriated and de-accessioned. While museum curators and professionals fully understand that each object tells a larger story, it is the object itself that is fetishised. (Kurin 2004, 1)

These material objects, including spaces such as landmarks and monuments, would not be considered worthy of such preservation and protection efforts unless the tangible object itself reflected or symbolised intangible cultural heritage. To put it colloquially, ‘there is a lot of intangible stuff underneath the tangible stuff.’ (McCleery et al. 2008, 28)

Defining these immaterial and intangible heritage practices can be difficult, yet is necessary from a legal perspective. The 2003 Convention for the Safeguarding of Intangible Cultural Heritage (the 2003 Convention) defines intangible cultural heritage as:

[T]he practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development. (A.2(1))

Intangible Cultural Heritage (ICH) can consist of traditional knowledge, songs, craftsmanship, dance, and other practices, as well as the associated cultural artefacts and spaces.[1] These examples are simply illustrative of the overarching concept of cultural memory and useful for contextualising why widely varying global living heritage passed generationally must be allowed to organically evolve. Such evolution, however, often defies the process of identification so desirable in the realm of legal protections.

National legal measures protect ICH like cultural memory once it becomes fixated in a material form. In the UK, the Copyright, Designs and Patents Act 1988 (the CDPA) bestows copyright upon authors in the form of time-limited exclusive rights in relation to fixed, original literary or artistic works. In some cases, ICH naturally lends itself to manifestation in these forms, such as a transcribed oral history or recorded dance. New ICH can also develop from and around these tangible objects. However, rendering intangible expressions in tangible form for copyright or other preservation and protection purposes can lead to a loss of meaning as a living practice for the relevant communities. Indeed, the very process of this materialisation counteracts the purpose of protection efforts. In these cases, ossification can prevent access to the authentic intangible expression by privileging a single moment in which the ICH has been captured and then represented to the public. Safeguarding access to genuine manifestations of ICH is key to enhancing public knowledge and providing the opportunity for practicing communities to influence the direction of cultural practices.

‘Access’ to ICH, in the context of artistic and literary works, will be shaped by relevant national laws, like the CDPA. When fixation occurs, qualifying works are protected by copyright law for a time-limited (albeit lengthy) period of time. After copyright expires, the work enters the public domain and in theory is free to be used by all. However, when cultural institutions digitise works in the public domain, a new copyright may arise in the digital surrogate that has been created. Moreover, once these digital surrogates are made available online, additional restrictions to access and use can be applied by the cultural institution through its website terms of use. Essentially, a new type of heritage is arising in these new traditions and professional practices in dealing with digital surrogates of these public domain works of art.

Even with many new initiatives to make artistic and literary cultural heritage material accessible online, ‘[t]his digitally available 10% represents an astonishing 300 million objects, reflecting the many facets of European culture captured in books, paintings, letters, photographs, sound and moving image. Only one third of that (34%) is currently available online, and barely 3% of that works for real creative reuse (for example in social media, via APIs, for mash-ups, etc.). We believe that if we can make this material available online, and preferably in open formats, we’ll start to see the benefits for society and the economy.’ (Europeana 2015, 9). No matter the technological and legal hurdles, it is important they are addressed and overcome as there is a high social and economic value return from making digital materials sharable (Tanner 2012). Beyond current value, future cultural heritage, both tangible and intangible, depends on the ability to learn from and develop shared cultural heritage.

This essay will proceed by examining more carefully the role of ICH in the GLAM sector and how it is viewed and processed by heritage practitioners. Next, it will propose ‘tangification’ as an approach to conceptualising ICH in an intellectual property and cultural heritage framework. Last, it will review some recent developments in ICH in the United Kingdom. The paper concludes by arguing that a greater understanding and acknowledgement of ICH within the GLAM sector would empower cultural institutions to enhance the public experience of our shared cultural heritage.

INTANGIBLE CULTURAL HERITAGE IN THE GLAM SECTOR

The GLAM sector is extremely adept at preserving as well as generating funding for the preservation of tangible heritage and immovable heritage, like monuments. Many of these modern heritage notions were furthered by the 1972 World Heritage Convention, which described cultural heritage as:

monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; – groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; – sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view. (Art.1(1))

Research has indicated several compounding scenarios that might explain why the safeguarding and celebration of intangible heritage is not so well served by Eurocentric conceptions of world heritage: (1) the institution believes country has no ICH (Smith and Waterton 2009); (2) the institution is unclear what ICH is (Stefano 2009, 117); (3) the institution is not equipped or suited to safeguard ICH (Kurin 2004); or (4) the institution does not wish to pursue additional measures to safeguard ICH. (McCleery et al. 2009, 9)

In the first instance, nations may not perceive their rich history and heritage as qualifying as ICH, which might trickle down to institutional attitudes. This atmosphere is indicative of or has also fostered an ‘authorised heritage discourse’ (AHD) surrounding artistic and literary works as well as ICH and could determine what is considered an acceptable and valuable form of heritage within the profession, while discounting others (Smith 2006). An English Heritage representative interviewed by Smith and Waterton stated ‘What are the obvious examples you could come up with? Morris Dancing? As intangible heritage and so on? The U.K. has no intangible heritage.’ (Smith and Waterton 2009, 297). Thus, even cultural institutions that do believe the country has ICH to protect may be swimming upstream against prevailing notions of ‘worthy’ heritage.

In the second instance, these responses might reveal that institutions are simply unclear on exactly what constitutes ICH; its nebulous nature is fundamental to ICH, and precise definitions have eluded the drafters of both legal definitions and the 2003 Convention. These uncertainties in formal definitions impact how the sector shapes informal practices when engaging with ICH. One practitioner reported he preferred to call the ICH associated with his tangible objects ‘living history’ as he was unsure how to define ICH (Stefano 2009). Despite linguistic vagary, ICH does have established practices and guidance available in order to allow free evolution as a living heritage; using common terminology increases the likelihood that the cultural institution can implement the best available safeguarding practices.

Third, even if an institution recognises ICH as important to protect, internal structures might impede the institution’s efforts. This is especially true, considering most traditional Western GLAM institutions are designed to preserve and protect tangible objects as a static representation of an idea or a moment in history, rather than fluid representations of concepts both intangible and immaterial. In addition to the methodological and sociological difficulties in preserving ICH associated with these objects (Kurin 2004), limited financial and human resources might curb efforts and prevent an institution from expanding or shifting its focus to encapsulate ICH.

Finally, an institution might choose not to undertake any ICH protection efforts at all; in this respect, the influence of the fact that the UK is not a party to the 2003 Convention should not be overlooked. English Heritage reported in 2009 that ‘The UK looked at the convention and concluded that a) it would be very difficult to monitor and enforce, and b) it duplicated efforts that the UK was already undertaking.’ (McCleery et al. 2009, 9). If cultural institutions adopt this perspective, they may choose to make no additional efforts to safeguard ICH or to explore the surrounding issues.

When ICH is not taken into account by GLAM, unforeseen issues can arise surrounding even large and well vetted cultural heritage projects. ICH is traditionally seen as encapsulating historical cultural memory, but it is equally important to recognise that instances of contemporary cultural memory also qualify as ICH. Take the recent example of Punk London, a large-scale collaboration amongst major UK cultural institutions celebrating the 40th anniversary of punk culture in London (Punk London n.d.). Billed as a celebration of punk, its features include live music shows, exhibitions, digital materials, and temporary tattooing at museums and music venues across London.

This collaborative institutional effort prompted a strong backlash from some of those closest to the movement, including Joe Corré, son of Sex Pistols manager, the late Malcom McLaren, who stated: ‘The Queen giving 2016, the year of punk, her official blessing is the most frightening thing I’ve ever heard. Talk about alternative and punk culture being appropriated by the mainstream.’ (Jonze 2016). While the Queen has not officially backed 2016 as the year of punk, the effort is supported by London Mayor Boris Johnson and the Heritage Lottery Fund. Outraged by this conformist commodification of the genre, Corré has claimed he will burn £5 million of punk memorabilia in protest. Punk, as a social movement and cultural practice defined by anarchy, may be in danger of becoming a tourist attraction as it is ‘proving to be a lucrative marketing opportunity.’ (Hunter-Tilney 2016). One headline asks: ‘Has it come to this? Punk as cultural heritage?’ (O’Hagan 2016). Punk London provides a compelling example of an unfortunate disconnect between GLAM and communities, one that will not be bridged until ICH and phenomena like tangification are taken into greater account and are similarly valued.

This disconnect presents another dilemma: what is to come of ICH that evolves within the practicing community as well as any ICH of that community that is deemed antithetical to the GLAM sector’s conception of ICH? This dilemma has revealed the tension between the more general common heritage of humankind and that of the specific practicing community.[2] On the one hand, common heritage of humankind takes the position that heritage belongs to humanity as a global culture; thus, preserving and protecting records of cultural practices is of utmost importance, regardless of any continuity of practice in the community. On the other hand, a practicing community approach would enable ICH to evolve organically and continue (or discontinue) to exist so long as the practice in question benefits those in that particular community. It remains an unanswered question as to whether one approach should take precedence over the other.

Technology has only complicated these issues further. Digitisation and online access have provided faster and easier ways to share and grow new communities. However, access and recourse to collections have de facto made GLAM the arbitrator of digital availability of culturally valuable works already in the public domain. This access arbitration could take many forms, such as limitation of cultural practice through terms and conditions imposed on the material objects, which might increase if ICH associated with the material object is not explicitly considered.

Since the late 1980s, intellectual property protection has increased in scope and duration domestically through schedules and statutory instruments as well as in global international agreements backed by trade sanctions, namely the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Cultural activity and production reflect the impact of social and legal systems that disproportionately reward tangible manifestations of cultural heritage, such as built heritage or fixed works suitable for copyright protection; however, there are always intangible facets to the tangible. When ICH is altered to a static form, this ‘tangification’ process converts ICH and other intangibles into a form that can then be owned. This process ossifies living heritage into a material embodiment, which may be developed into a generic saleable good as opposed to an existing cultural practice. Tangification is a necessary, though not sufficient, precursor to propertisation, an additional alteration which can stagnate or devalue ICH. This progression or transformation shapes the ICH in an (often) nondeliberate way through rewarding tangible manifestations with legal protections and social reinforcement.

Using terminology like ‘tangification’ shifts the focus from copyright protection to the precondition for intellectual property, as most copyright regimes require fixation. Once culture is formalised and owned as intellectual property, it may be converted to a form suitable for sale on the economic market, known as commodification. Products on the market are exposed further to possible commoditisation, and risk becoming a generic saleable form. This commoditised form is bereft of the intangible traits that enrich and generate value for creative and cultural ICH.

Naturally, community participation is one way to safeguard ICH and secure its continuation for future appreciation. Yet, even when community participation is strong and the driving factor of a safeguarding effort, participation alone is an insufficient protective measure and is subject to the same risks of tangification. As McCleery points out:

At the other end of the ‘participation’ scale, the possible repercussions on ICH practices ‘safeguarded’ to the point of distortion through commodification is something which should be considered. ‘Edinburgh’s Hogmanay’ (see also 2.3.1 Case studies) is a commercially driven ‘festival’ or collection of events taking place over the New Year period. (McCleery et al. 2008, 11)

THE PROPERTISATION CHAIN

Figure 1 illustrates the process surrounding the concept of ‘tangification’ and its relationship to the economic commercial market through intellectual property.[3]

Figure 1: The Propertisation Chain, which illustrates the process surrounding the concept of ‘tangification’ and its relationship to economic and commercial market through intellectual property.

STAGE ONE: TANGIFICATION

Tangification is the natural result of immaterial aspects of culture taking a material form. While set in a context for ICH moving through the chain, the full process is a fairly mundane occurrence for items that are already tangible pieces of property. Importantly, none of these steps in the tangification chain are inevitable. Taking more familiar examples from the realm of patents, ordinary objects entering the market – from curved television screens to uniquely designed sunglasses – are exposed to the same phenomenon but would enter and move forward from the stage of propertisation. That is, these items do not undergo any tangification: while they have both intangible and tangible forms in an intellectual property sense, they are intended at conception to exist as tangible products. No change in their nature conforms to the demands of intellectual property protection, nor was it the maker’s intention to create a tangible, individually possessable object that defines or incorporates the cultural identity of a group.

However, ICH must undergo a transformation, however subtle, to become protectable as intellectual property. This ‘tangification’ transmutes ICH from a collective, evolving practice in response to a community and environment passed through generations into something that is sufficiently fixed such that it can be owned. This process results in the loss of essential qualities of ICH, intentionally or unintentionally. Intentional alteration in form could be motivated by the desire to gain intellectual property protection. By contrast, a natural evolution of ICH might automatically gain copyright protection upon meeting the subject matter and fixation requirements. For instance, an oral history could be recorded for either safeguarding or copyright purposes, or its community members might decide the written record is important as a part of the storytelling process. Each act results in a fixation through tangible forms.

STAGE TWO: PROPERTISATION

Prior to propertisation, the ICH must take a tangible form for fixation as required by copyright. ICH does not shed all intangible aspects; it is intangible intellectual property that is owned by an author and not its physical manifestations. Thus, the ICH can still become tangible in the sense that it transitions into fixed form. This fixation is a prerequisite for intellectual property protection under the CDPA.

STAGE THREE: COMMODIFICATION

What follows is the more commonly known process of commodification: a transformation of noncommercial goods, services, activities, ideas, or even a person,[4] into a product with economic value, intended for exchange. This transformation allows the property to be sold on the commercial market.

STAGE FOUR: COMMODITISATION

At this stage of the chain, commercial popularity and market forces might dictate that commodified ICH evolves into a generic commodity. All of the benefits that come along with cultural richness and identity are removed when generic products emerge. Rather than emerge as discrete phenomena, commoditisation must be a successor of commodification, even if the commodification is subtle and momentary. As such, the subject item, ICH, or person must first become commercial before becoming generic in trade.

Alerting the GLAM sector to how and when ICH becomes tangified – as well as its effects on cultural heritage – could raise awareness of the importance of ICH within the sector. The sector’s professional goals and standards often protect works of cultural importance from private ownership and from commodification and commoditisation in order to preserve shared access and guarantee preservation for future generations. Tangification is a useful concept for describing how these preservation practices might lead to ossification, rendering a stagnant echo of the evolving community heritage and identity. Similar processes can be traced in Display At Your Own Risk as digital surrogates come to be viewed as new assets independent of their material object, which then themselves continue down the propertisation chain toward commodification and commoditisation.

New ICH can develop within the sector surrounding or integrating cultural objects into existing GLAM practices, so the impact on shared heritage can be great. Where these practices limit access to cultural heritage, the social and economic benefits that might develop surrounding the material objects and their digital surrogates go unrealised.

DEVELOPMENTS WITH ICH AND GLAM IN THE UK

The United Kingdom has yet to sign the 2003 Convention, the primary international treaty on ICH. The 2003 Convention requires parties to create an inventory of ICH, promote education and awareness of ICH, and to implement ‘safeguarding’ measures (Art.1). Drafters chose the term ‘safeguarding’ instead of ‘protecting’ to encompass the particular nature of ICH as an evolving living heritage. Safeguarding includes ‘measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.’ (Art.2(3))

Scotland has specifically indicated interest in joining the 2003 Convention but lacks the power to unilaterally enter into international treaties due to its limited devolved powers in the United Kingdom. During the Scottish independence campaign of 2015, those advocating for independence expressed a commitment to signing the Convention – an issue rarely addressed by other political movements (Scottish Government 2013). While the campaign for independence failed, there have been efforts in recent years for Scotland’s domestic law to mirror the requirements of the Convention and to emphasise the importance of ICH in Scotland.

Historically, the GLAM sector has supported these efforts, and the proactiveness of the sector in increasing awareness of ICH is also growing. For instance, in 2008, Museums Galleries Scotland produced an inventory of the ICH in Scotland, which later evolved into a Scottish ICH Wiki resource; more recently it hosted a highly successful symposium specifically on ICH, bringing together prominent members of this international research community (IHC Scotland Wiki n.d.; Museums Galleries Scotland 2015).

In the absence of international treaty force, diverse types of legal protection have arisen intended to protect ICH. For instance, the 1993 Harris Tweed Act created a sui generis protection resembling trade mark law (including regulating noncommercial use) as well as a regulatory body, the Harris Tweed Authority. The Act dictates that the fabric must be woven on the Scottish islands of the Outer Hebrides with traditional weaving methods to bear its mark. Similar in nature is the 2008 Scottish Register of Tartans Act which created a nationally managed Tartan Register, although this Act specifically states that no intellectual property rights are granted or affected by registration (Scottish Tartan Register n.d.). Nonetheless, the purpose of the Tartans Act is ‘(a) to be a repository for the preservation of tartans, and (b) to be a source of information about tartans.’ (Art.1(2))

ICH is also gaining more recognition in England. The Royal Society for the Encouragement of Arts, Manufactures and Commerce (the RSA) dedicated a section of their annual report in 2015 to ICH and attempted to include ICH in their heritage index by adding ‘culture and memories’ as one of the seven factors alongside more traditional categories, such as ‘landmarks and monuments.’ The RSA states:

Often, we tend to associate heritage with historic structures which have stood the test of time: castles and palaces, museums and country houses, as well as the legacy of industrial Britain. But the places where history comes alive are places where people have activated local history. Heritage doesn’t speak for itself – it involves people playing a role to interpret historic resources, so that they are meaningful in the present day. Therefore, we consider that heritage activities are just as important as heritage assets … Most interestingly, digging further into the data, it is heritage activities rather than heritage assets which account for the strength of the link between heritage and wellbeing at a local scale. (Schifferes 2015, 5, 15)

This RSA report echoed concerns voiced by scholars and practitioners alike regarding the difficulty of documenting empirical data for ICH. However, other data sources in this area are either conceptually difficult to assemble or have not yet been compiled in anywhere near the same detail as exists with the long-established lists for protected buildings or nature sites, for example … Other types of heritage defy being grounded to a single place. (Schifferes 2015, 23)

The report noted how difficult it is to measure the impact of ICH, considering the general absence of countable aspects of ICH as opposed to tangible or immovable heritage. Factors used in the report to create a ranked index of heritage, such as number of sites, size, expansions, and ticket sales, are often useless or not applicable when dealing with ICH.

Even though these developments are promising in heritage and arts communities, the impact is limited on the law and especially on intellectual property.

While this section is by no means an exhaustive recount of the institutional and community-led UK developments towards greater recognition of ICH as a living, evolving heritage, resistant to traditional metrics, the uptake of the terminology and inclusion in GLAM reports and activities is encouraging.

CONCLUSION

ICH permeates our cultural heritage institutions, social practices, and history. Cultural institutions are unique keepers of ICH separately and alongside tangible cultural objects, whether intentionally or not. Greater understanding and acknowledgement of ICH in the GLAM sector would enhance the cultural experience. It would also empower cultural institutions to make more nuanced decisions when balancing the rapid growth of technology and expansion of copyright laws with stewardship as well as managing unexpected outcomes that may result from practices such as digitisation and the reuse of digital surrogates. Display At Your Own Risk demonstrates vividly how copyright law and the GLAM sector’s terms and conditions affect not only the tangible objects, but also the ICH surrounding the public’s interaction with works in forms created by cultural institutions’ practices.

[1] During negotiations for and since the Convention’s adoption, scholars expressed concern that defining ICH in codified documents could further perpetuate existing cultural divisions. ‘The use of the terms ‘indigenous’ and ‘traditional’ help to perpetuate a historical distinction between (tangible) Western and (intangible) non-Western cultural heritage. We therefore support a definition of intangible heritage that does not limit instances to the ‘traditional’ or ‘indigenous’, or even to cultural forms that have already been passed on from ‘generation to generation’.’ (Deacon et al. 2003, 33).

[2] In ‘The Common Heritage of Mankind,’ White explores shared heritage through the lens of historical development of international treaties. Many modern authors now use ‘humankind’ rather than ‘mankind’ (White 1982).

[3] These are necessary, but not sufficient steps. Not all ICH will be tangified; not tangified ICH will be propertised; not all property will become commodified; not all commodified property will become a commodity. However, each step is a necessary prerequisite to the next.

[4] Commodification of a person might be more accurately defined as commodification of a persona, as in the instance of celebrity. This conceptual framework does not consider human slavery as a part of the argument.